At a meeting marking the fifth anniversary of the Olmstead
decision by the U.S. Supreme Court, participants reported limited progress in
implementation (see box below).
The meeting, titled "The Olmstead Decision Five Years Later:
How Has It Affected Health Services and the Civil Rights of Individuals With
Disabilities?," was hosted in late June by the Alliance for Health
Reform and the Kaiser Commission on Medicaid and the Uninsured.
Five years earlier, on June 22, 1999, the U.S. Supreme Court ruled in
Olmstead v. L.C. that states are required to place persons with
mental disabilities in community settings when the treatment professionals
deem that setting appropriate, the individual does not object, and the
placement can be "reasonably accommodated" (Psychiatric
News, July 16, 1999).
Michael Gottesman, who argued the plaintiff's case and is now a professor
of law at Georgetown University, told the audience that the "relatively
easy" part of the decision was showing that discrimination had occurred
when Georgia state officials required two women with mental disabilities to
remain in a locked psychiatric ward even though they had been assessed as
ready to live in community facilities.
The "hard part" was responding to the state's argument that the
state "just can't afford to solve this problem."
Gottesman said that the Supreme Court found a "middle ground"
in responding to that question.
According to the decision, states can comply by demonstrating a"
comprehensive, effectively working plan for placing qualified persons
with mental disabilities in less-restrictive settings and a waiting list that
moved at a reasonable pace not controlled by the state's endeavors to keep its
institutions fully populated" (see box at right).
Tim Westmoreland, a visiting professor of law and a research professor of
public policy at Georgetown University, was director of the federal Medicaid
program from 1999 to 2001 and worked on the initial implementation of the
decision. Medicaid is the major source of public funds for services for those
He commented that only about three-fifths of the states had made progress
on their plans, adding, "Many of these plans... have vague targets, no
timelines, and no connections to state budgets, which of course drive federal
Medicaid spending. And, more important, only a few of the states.. .have
significantly improved their services in the last five years."
Westmoreland also noted problems with relying on Medicaid as a source of
funds for implementation of the Olmstead decision. When states have
economic problems, as they have for the last three years, state officials cut
Medicaid spending, which reduces the federal contribution.
Medicaid "favors institutionalization" in that the provision of
nursing home benefits is mandatory, but home and community care benefits are
not. In fact, their provision generally requires a waiver from the federal
He added, "[W]aivers are a bad thing for people with disabilities
because they allow keeping eligible people out, forming waiting lists at the
door.. .and also allow very limited services to be provided [despite the fact
that federal funds are used]."
States can use waivers to keep some people off the Medicaid rolls because a
waiver allows them to stop providing a certain kind of optional service or to
stop serving a group of people in exchange for providing different services or
service to a different group of people. Since waivers are cost neutral, if
beneficiaries or services are added, others must be cut.
Matt Salo, director of the Health and Human Services Committee of the
National Governors Association, agreed that the Medicaid program is very much
driven by "federal rules and regulations," as well as by state
He claimed, however, that there had been an "enormous
aggressiveness" on the part of the states to do as much as possible to
serve people in their homes and communities.
States have obtained more than 220 individual waivers from the federal
government to allow them to use Medicaid funds to provide home- and
community-based care. Dollars spent on those services total about 32 percent
of all spending on long-term care in the Medicaid program.
He added that given the popularity of the waivers, "these should not
be waivers any more. We should be allowed to do this without bowing our heads
to the federal government."
Tom Perez, assistant professor of law at the University of Maryland, said
that he had been hearing from those "in the field" that complaints
were not being filed with the Office of Civil Rights about the slow pace of
implementation because "there's a sense that there really is no
He added, "I don't think the states view the federal government as a
credible threat at the moment, and that's one reason you see a lot of inertia
out there in some quarters."
"Olmsteadat Five: Assessing the Impact," a
report issued by the Kaiser Commission on Medicaid and the Uninsured, and
numerous related reports are posted at<www.kff.org/medicaid/kcmu062104pkg.cfm.>.▪